The intersection of criminal law and immigration law

Dream Act of 2017 crime bars

With much fanfare, Senators Richard Durbin (D-Illinois) and Linsey Graham (R-South Carolina) introduced a revamped version of the Dream Act yesterday. White House officials have already said that the president is unlikely to support it. But with a president who shifts positions constantly, it’s worth taking seriously the prospect that the Dream Act of 2017, S. 1615, moves forward.

As with the earlier version of the Dream Act that came a handful of votes away from landing on President Obama’s desk and with DACA, the Dream Act of 2017 would exclude people who have encountered the criminal justice system in a variety of ways. Under the language of the bill as introduced in the Senate yesterday, people who have had the kinds of run-ins with police that already pose immigration law problems for many would not be eligible to adjust their status to that of a permanent resident “on a conditional basis,” the proposal’s key innovation.

Below is a section-by-section analysis of the Dream Act of 2017’s crime-based ineligibility provisions.

Section 3(b)(1)(C)(i)

Section § 3(b)(1)(C)(i) of S. 1615 covers most of the crime-based grounds of inadmissibility currently within the Immigration and Nationality Act. It is the broadest and most concerning piece of the Dream Act’s latest iteration. Specifically, it covers INA §§ 212(a)(2), (3), (6)(E), (6)(G), (8), (10)(A), (10)(C), and (10)(D).

These sections target terrorists and Nazis, but they also reach people who are much more ordinary. For example, anyone who has committed or been convicted of a crime involving moral turpitude or controlled substances offense is inadmissible. So is anyone convicted of two or more crimes and sentenced to at least five years of prison time. Combined, these three grounds of inadmissibility arise very frequently in immigration courts.

As immigration attorneys know well, the controlled substance offense provision is sweeping. It includes just about any drug crime. Importantly, it doesn’t require a conviction. Admitting that you have bought marijuana is enough. With more states taking some steps to legalize marijuana use, immigration-law bars based on low-level drug offenses become increasingly worrisome because more people, regardless of immigration status, believe marijuana purchase and use isn’t a crime. No matter what the stores emblazoned with green crosses in Denver, where I live, suggest, it remains a federal crime and thus a basis of inadmissibility under immigration law. I shudder to think that young people will be ineligible for protection under the Dream Act of 2017 because they did nothing more than participate in the marijuana industry that is filling Colorado tax coffers and propelling its image as a millennial-friendly destination.

Similarly, the crime involving moral turpitude basis of inadmissibility is a hot mess. Despite being part of immigration law since the late 1800s, Congress has never bothered to define the phrase. The Board of Immigration Appeals and federal courts say it includes crimes centered on “inherently base, vile, or depraved” conduct. The tricky part is that no one really knows what is inherently base, vile, or depraved. It’s a thoroughly subjective measure that changes over time. In a 2010 decision, the U.S. Court of Appeals for the Ninth Circuit wrote that the only thing consistent about the CIMT phrase is “the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.” That is not much help to young people trying to figure out whether they can benefit from the Dream Act of 2017, if enacted.

Section § 3(b)(1)(C)(iii)(I)

This section departs from existing immigration law to bar from eligibility anyone convicted of a federal or state offense punishable by a maximum term of imprisonment of more than 1 year. Interestingly, it does not bar people convicted of “a State offense for which an essential element is the alien’s immigration status,” but it does bar people convicted of some federal immigration crimes.

The federal crime of illegal entry, INA § 275, carries a two-year maximum prison stint for repeat offenders. Its counterpart, illegal reentry, INA § 276, also brings up to two-years imprisonment. In recent years, immigration crimes, especially illegal entry and illegal reentry, have been the most frequently prosecuted type of federal crime nationwide. Over 20,000 people are convicted of these offenses annually. I have not seen data on the age of these offenders, but I have no reason to think there are not a lot of young people who might otherwise benefit from the Dream Act.

Section 3(b)(1)(C)(iii)(II)

This section bars from eligibility anyone convicted on different dates of three or more federal or state offenses and imprisoned for a total of 90 days or more. As written, the language suggests that the migrant must actually have served at least 90 days in prison.

The goal is obviously to penalize repeat offenders. There is no minimum sentence requirement on the individual offenses. Likewise, it is not limited to offenses of a certain severity; felonies and misdemeanors count. As such, this provision resembles the so-called “three strikes” laws that were popular in the 1990s.

Section 3(b)(3)

According to this section, DHS can use exclude people from Dream Act of 2017 protection based on convictions that have been expunged. However, DHS can choose otherwise. The bill authorizes DHS to not use expunged convictions as the basis for denial on a “case-by-case basis according to the nature and severity of the offense.” This language obviously gives agency officials a lot of discretion to exercise their judgment as they see fit, constrained, of course, by department directives.

Section 3(b)(2)

This section provides an important waiver to people who are otherwise deemed ineligible for Dream Act of 2017 protection. Specifically, it allows DHS to waive INA § 212(a)(2), (6)(E), (6)(G), (10)(D) “for humanitarian purposes or family unity” or other “public interest.”

This waiver should not be understated. It represents a vital lifeline for many of the people who might otherwise be tripped up by the controlled substances offense or crime involving moral turpitude grounds of inadmissibility.

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Overall, the Dream Act of 2017 marks a renewed effort to do right by the millions of young people who have made their lives in the United States but lack formal authorization to be here. Regrettably, the bill adopts the common stance of pitting some migrants against others: the good versus the bad, the desirable against the undesirable. As the bill moves through Congress, it’s worth keeping in mind the people who are being excluded from the Dream Act’s reach. These, too, are young people who have made the United States their homes.

February 5: Quoted in article about Indiana death in drunk driving incident allegedly caused by unauthorized migrant [Read article here]

January 31: I'm quoted in San Francisco Chronicle about ICE's policy of arresting people in and near courthouses [Read article here]

January 18: I talked to CityLab about symbolic value of ICE raids on 7-11 stores [Read article here]

January 8: I'm quoted in Governing talking about ICE head's threats to imprison elected officials who support policies limiting cooperation with ICE [Read article here]

January 5: I'm quoted in article about San Antonio Police Department decision to prosecute alleged migrant smuggler under state law rather than hand over to ICE for federal prosecution [Read article here]

January 3: Quoted in article about ICE chief's threats to imprison elected officials who support migrant-friendly policies [Read article here]

2018

December 30: I'm quoted in The Atlantic discussing the special impact crimmigration policies have on black migrants [Read article here]

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